Opinion
Civil Action No. 4:CV-05-0895.
May 10, 2005
REPORT AND RECOMMENDATION
On May 2, 2005, Petitioner, Vincenzo Morena, filed, through counsel, a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). The filing fee has been paid.
In the above-referenced § 2241 habeas case, the Petitioner is a BICE detainee at Clinton County Prison seeking release from confinement and claims that his continued detention violates the Constitution. (Doc. 1). Petitioner also raises an Eighth Amendment claim of denial of proper medical care for his heart condition. Upon preliminary review of the instant Petition, we find that Petitioner's Eighth Amendment claim should be dismissed without prejudice.
Petitioner states that he is a native and citizen of Italy who entered the United States in October, 1973, as an immigrant and was granted status as a permanent resident alien for over thirty (30) years. (Doc. 1, pp. 2-3 Ex. A). He claims to have a United States citizen wife and one (1) child with her.
In March, 2001, Petitioner was convicted in the Eastern District of New York of racketeering, 18 U.S.C. § 1962(d), and was sentenced to 51 months imprisonment. (Doc. 1, p. 3, Ex. A). In July, 2001, BICE (formerly INS) issued a Notice to Appear based on Petitioner's racketeering conviction. Petitioner states that he was found to be deportable under § 237(a)(2)(A)(iii) of the INA. Petitioner claims that a Removal Order was issued by an IJ on November 4, 2003, and that the BIA denied his subsequent appeal without opinion. Petitioner claimed in part that he was not convicted of an aggravated felony under INA § 101 (a)(43).
Section 237(a)(2)(A)(iii) of the INA provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii).
Petitioner filed a petition for writ of habeas corpus in the District Court for the Eastern District of New York on April 24, 2004, in which he challenged the decision of the BIA to remove him. Petitioner moved to amend his habeas petition to add a claim regarding the denial of medical care, a claim that his continued detention was unlawful, and a claim regarding the BIA's denial of his appeal of the Removal Order without an opinion. On April 11, 2005, the District Court in New York, in part, denied Petitioner's claims regarding his continued detention and denial of medical care without prejudice to file them in the Middle District of Pennsylvania, his place of confinement. (Doc. 1, pp. 4-5, Ex. E). Petitioner's remaining stated claims, including his challenge to the Removal Order, is still pending in his habeas corpus petition with the New York District Court.
Thus, the Petitioner's challenge to the IJ's removal order and to the BIA's order denying his appeal remain with the Eastern District of New York. ( See Petitioner's Exhibit E to Doc. 1). Petitioner then filed the instant Habeas Petition and seeks the Court to issue a stay of his deportation.
The record indicates that Petitioner's request for a stay of removal he filed in the Eastern District of New York was granted. (Doc. 1, Ex. H).
Petitioner states that he is challenging his continued detention by BICE alleging that it violates Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491 (2001). The Petitioner also challenges the prison's alleged failure to provide him with follow-up medical care for his heart condition. (Doc. 1, pp. 5-6). Petitioner's latter claim is an Eighth Amendment denial of medical care claim.
Petitioner is subject to a final removal order as of March, 2004, and he is no longer within the six-month presumptive deportation period as specified by Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001). See Patel v. Zemski, 275 F. 3d 299, 307 (3d Cir. 2001) (under Zadvydas, immigration detention implicates a fundamental liberty interest and that the INS is limited with respect to the detention of post-removal-order aliens "to a period reasonably necessary to bring about the alien's removal, generally no more than six months." Id. at 309 (citing Zadvydas, 121 S. Ct. at 2505)).
As his first claim, Petitioner states that despite being given a custody review by BICE in November, 2004, the decision of BICE to continue his detention was arbitrary and an abuse of discretion, and he claims that he submitted sufficient evidence to support his release from custody. (Doc. 1, p. 5, Ex. H). The BICE custody decision notes that Petitioner has been granted a stay of removal by the Eastern District of New York and that his custody will be reconsidered if the stay is not lifted within one year or when the stay is lifted. (Doc. 1, Ex. H).
As his second claim, Plaintiff avers that the Respondents have refused to provide him with adequate follow-up medical care for his heart condition, including various tests recommended by an outside doctor. (Doc. 1, p. 6). As relief, Petitioner seeks, in part, the Court to order Respondents to provide him with immediate medical care. ( Id., p. 9).
The Petitioner's second claim, i.e Eighth Amendment denial of medical care claim, is not deemed as a proper habeas corpus claim since it does not challenge the Plaintiff's conviction or his sentence and does not seek his release from confinement. Rather, this claim challenges the conditions of Petitioner's confinement. Upon review of the Petition, we find that the Eighth Amendment claim of Petitioner should be dismissed without prejudice and that Petitioner should be directed to file this claim in a civil rights complaint pursuant to 28 U.S.C. § 1331, after he exhausts his administrative remedies. Before a prisoner can bring a habeas petition under 28 U.S.C. § 2241, administrative remedies must be exhausted. See Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir. 1996). If a prisoner does not exhaust available remedies, the petition should be dismissed. Arias v. United States Parole Commission, 648 F.2d 196, 199 (3d Cir. 1981); Mayberry v. Pettiford, 2003 WL 21635306 (5th Cir.).
In Colton v. Ashcroft, 299 F. Supp. 2d 681, 689 (E.D. Ky. 2004), the Court stated as follows:
Federal prisoners are required to exhaust administrative remedies before filing a habeas corpus petition under 28 U.S.C. § 2241. Little v. Hopkins, 638 F.2d 953, 953-954 (6th Cir. 1981) (per curiam). Only after a federal prisoner seeking § 2241 relief has sought and exhausted administrative remedies pursuant to 28 C.F.R. § 542.10-16 (1997) (and not pursuant to PLRA provisions § 1997e(a)) may the prisoner then seek § 2241 judicial review. United States v. Oglesby, 52 Fed.Appx. 712, 714, 2002 WL 31770320 *2 (6th Cir. 2002) (citing United States v. Wilson, 503 U.S. 329, 335, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996)). The exhaustion of administrative remedies procedure required of a § 2241 petitioner is not a statutory (PLRA) requirement, but instead, is a wholly judicially created requirement. See Wesley v. Lamanna, 27 Fed. Appx. 438, 2001 WL 14150759 (6th Cir. 2001).
While Petitioner is an inmate at the Clinton County Prison, he is clearly a detainee of BICE and claims to be detained under the control of Scott Blake, Director of Dept. of Homeland Security ("DHS"). (Doc. 1, p. 6). Therefore, insofar as Petitioner is claiming that DHS is failing to authorize proper medical care for him, he should be directed to file a civil rights complaint pursuant to 28 U.S.C. § 1331, in accordance with Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
The district court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 to entertain an action brought to redress alleged federal constitutional or statutory violations by a federal actor under Bivens, supra. Bivens stands for the proposition that "a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal question jurisdiction of the district court to obtain an award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent of an action brought pursuant to 42 U.S.C. § 1983 and the same legal principles have been held to apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D. Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa. 1992). In order to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him of a federal right, and that the person who caused the deprivation acted under color of federal law. See, West v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa. 1992). A defendant's conduct must have a close causal connection to the plaintiff's injury in order for liability to attach. Martinez v. California, 444 U.S. 277, 285 (1980).
We find that with respect to the Eighth Amendment claim in the Petition, it should be pursued as a civil rights complaint, and Petitioner should be directed to file a Bivens action against DHS officials.
Notwithstanding the fact that Petitioner is not seeking monetary damages and is only asking the Court to remedy an alleged unconstitutional condition of confinement with respect to his claim of failure to provide proper medical care for his heart condition, he can properly pursue this claim in a Section 1331 Bivens action. We find that the proper way to proceed when a federal prisoner, or detainee, is challenging the conditions of his confinement, rather than challenging the fact or duration of his physical confinement itself, is via a civil rights complaint. Insofar as Petitioner is seeking his immediate release from his continued detention by BICE, this claim may proceed in his habeas petition. However, Petitioner's Eighth Amendment claim in this case relates solely to the conditions of his confinement. Specifically, as stated, he states that he is being denied adequate follow-up tests and treatment for his heart condition which were recommended by a doctor in alleged violation of the Eighth Amendment.
In our view, the Petitioner is clearly challenging the conditions of his confinement with respect to the Eighth Amendment claim. He is not attacking the fact or length of his confinement or the validity of his underlying conviction and sentence. Traditionally, the core of habeas corpus is an attack on the prisoner's conviction itself, and it directly challenges the constitutionality of the prisoner's physical confinement and seeks either immediate release from that confinement or decreased period of the length of confinement. The Petitioner, in his Eighth Amendment claim, seeks to be given immediate medical care, and this is not a core habeas claim. 28 U.S.C. § 2241(c)(3) provides that "[t]he writ of habeas corpus shall not extend to a prisoner unless . . . (3) [h]e is in custody in violation of the Constitution or laws of the United States . . ." Conversely, the general remedy for prisoners challenging their conditions of confinement was through the filing of a civil rights action. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827 (1973).
We believe that the recent Third Circuit case of Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002), is on point with the present case. In Leamer, the Third Circuit stated:
whenever the challenge ultimately attacks the `core of habeas' — the validity of the continued conviction or the fact or length of the sentence — a challenge, however denominated and regardless of the relief sought, must be brought by way of a habeas corpus petition. Conversely, when the challenge is to a condition of confinement such that a finding in plaintiff's favor would not alter his sentence or undo his conviction, an action under § 1983 is appropriate. (Emphasis added).
Unlike Leamer, the present Eighth Amendment claim should have been brought under Section 1331, and not Section 1983, as discussed above. However, we believe the rationale of Leamer still applies to this case. The Petitioner, in his Eighth Amendment claim, is challenging the conditions of his confinement, and he claims that DHS officials will not authorize his required follow-up medical care. A ruling in the Petitioner's favor on this claim would not alter his confinement or release him from custody and, therefore, we believe this claim should be construed one pursuant to Section 1331. In the instant case, as in Leamer, the Eighth Amendment claim of the Petitioner is clearly aimed at a condition of his confinement and is a challenge properly brought as a civil rights action under Section 1331. Once again, the Third Circuit noted that the operative test in determining if the suit should be filed as a writ of habeas corpus or a civil rights action is whether a favorable determination of Plaintiff's challenge would "necessarily imply" that he would serve a shorter sentence. In this case, we fail to see how Petitioner's confinement would be affected in any way if he is successful on his Eighth Amendment claim. Even if Plaintiff succeeds in getting his requested relief of being provided with medical care as suggested by a doctor, his continued custody will not be affected. Moreover, the Leamer Court did not indicate that the test was whether the claimant was seeking monetary relief as opposed to equitable relief, as Petitioner is seeking here with respect to his Eighth Amendment claim. Rather, by its holding, the Leamer Court did not find that the type of relief sought was determinative. See Leamer at 542.
Further, Leamer held that the fact the prisoner's suit might increase his chance for early release does not, in itself, transform the action into one for habeas corpus. Id. at 543, citing Georgevich v. Strauss, 792 F.2d 1078, 1089 (3d Cir. 1985). In this case, under the Court's holding in Leamer, Petitioner's Eighth Amendment claim does not fall within the "core of habeas" since if he is successful, he will not be entitled to sooner release from BICE custody. A prison confinement action, such as Petitioner's present Eighth Amendment claim, is properly a civil rights action under Section 1331. Leamer at 544.
Accordingly, we recommend that, to the extent that the Habeas Petition asserts an Eighth Amendment denial of medical care claim, it be dismissed without prejudice to Petitioner to file it in a Section 1331 Bivens action after applicable administrative remedies are exhausted. We also recommend that this case be remanded to the undersigned for further proceedings, including service of the Habeas Petition on Respondents.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated May 10, 2005.Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within ten (10) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.